The Congressional Research Service issued a report on April 28 which stated that the Department of Defense should seriously consider following the lead of the Justice Department, which at the end of 2014 announced that transgender federal employees would be added to the list of people protected against discrimination by the Civil Rights Act of 1964.
The report was unearthed by the Federation of American Scientists and made available at the blog, Secrecy News
The document is entitled CRS Insights, and subtitled What are the Department of Defense (DOD) Policies on Transgender Service?. It was written by Kristy N. Kamarck, who is described as an analyst in military manpower.
On December 18, 2014, then-Attorney General Eric Holder announced that the Department of Justice would take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. While Title VII does not apply to military personnel, for some, this change in the Administration’s position has raised questions about U.S. law and DOD policies as they relate to transgender individuals.
Noting that the word “transgender” does not appear in any US Code, Code of Federal Regulations or DoD policies, the report gives a short definition and adds
DOD treats the physical and psychological aspects of transgender conditions as disqualifying conditions for new accessions and for the discharge of existing servicemembers.
Current DOD policies:
1. Prohibit the appointment, enlistment, or induction of those with a “current or history of psychosexual conditions, including but not limited to transsexualism, exhibitionism, transvestism, voyeurism, and other paraphilias,” or those with “history of major abnormalities or defects of the genitalia including but not limited to change of sex, hermaphroditism, pseudohermaphroditism, or pure gonadal dysgenesis;”
2. Allow servicemembers to be separated administratively on the basis of a diagnosis of a mental disorder. Mental disorders are further defined by military department regulations to include, “psychosexual, transsexual, and gender identity conditions to include…change of sex or a current attempt to change sex.”
The report notes that the first policy bans entry into service of anyone who has ever had sex reassignment surgery, regardless of their state of health at present, and anyone who had ever been diagnosed as a candidate for such surgery, whether or not surgery was ever performed.
The report says the second policy allows for existing servicemembers to be separated for mental disorders, it does not require such separation…and that the policy authorizes discharge of the servicemember “only if the mental health provider’s diagnosis ‘concludes that the disorder is so severe that the member’s ability to function effectively in the military environment is significantly impaired.'”
The report’s largest emphasis is that the DoD errs in treating all transgender people as if they are in identical circumstances.
The report remarks that considerations might be (perhaps “should be”) different for individuals in the following categories
1. Individuals who self-identify as a different gender and would like to be recognized as their chosen gender, but who do not choose to undergo hormone therapy or surgical intervention
2. Individuals who are undergoing or would like to undergo hormone therapy without surgery
3. Individuals who have had or wish to have gender confirmation surgery.
In all cases the DOD might need to consider administrative questions regarding, for example, the type of uniform worn, the gender listed on the individual’s military I.D., and duty and berthing assignments. If the individual is undergoing hormone therapy, another consideration might be the physical fitness testing and standards that apply (currently these vary by gender). In cases where medical treatments are required, the DOD might need to review military health insurance (TRICARE) benefits that currently do not cover treatments or surgery related to transsexualism or gender dysphoria.
The report includes the statement of Secretary of Defense Ashton Carter (Kandahar Afghanistan, 2015)
I’m very open-minded about … what their personal lives and proclivities are, provided they can do what we need them to do for us. That’s the important criteria. Are they going to be excellent service members?
–Carter
It finishes by noting that the DoD has yet to initiate a formal review of transgender service policy, but that the Pentagon has stated that it had begun in February a periodic review of medical requirements which was expected to take approximately 12-18 months.
While some in the military have expressed reservations about any policy changes that would allow transgender individuals to serve in the military, other senior leaders have signaled openness to the possibility of changing DoD policies.
–Ryan McDermott, FierceGovernment
The story of Sgt. Shane Ortega can elucidate the issue.
Over the past decade, Sgt. Shane Ortega has served three combat tours: Two in Iraq, one in Afghanistan. Two as a Marine and one in the Army. Two as a woman and one as a man.
Ortega is a helicopter crew chief in the Army’s 25th Infantry Division in Hawaii. He was born female and would like to serve the rest of his career as a man. That would require a significant change in Pentagon rules, which require that transgender troops be discharged from military service, usually on medical grounds.
Last summer, medical tests showed Ortega had elevated testosterone levels due to the hormones he was taking to support his transition to being a man. As a result, he was barred from flight duties. He still faces the risk of being separated from the Army, but the intervention of an outside legal advocacy group has held that off, at least temporarily. He remains a woman in the eyes of the military, a status with emotional and practical costs.
You can also listen to a bit of Australian Group Captain Cate McGregor, the world’s highest ranking transgender military officer.
For more on Col. McGregor, here’s a link to coverage of her address last month to the National Press Club. An interview with Col. McGregor is covered here.
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